EFF Press Release Archives

Press Releases: November 2013

Petition Urges Support for 13 International “Necessary and Proportionate” Principles

San Francisco - An international coalition of human rights and privacy organizations today launched an action center to oppose mass surveillance on the global stage: necessaryandproportionate.org/take-action. The new petition site went live just as the United Nations voted on a resolution to recognize the need for the international community to come to terms with new digital surveillance techniques.

The Electronic Frontier Foundation (EFF), along with Access and Privacy International, took a leadership role in developing the campaign. The new action center allows individuals from around the world to sign their names to a petition in support of the "International Principles on the Application of Human Rights to Communications Surveillance." Also known as the "Necessary and Proportionate Principles," the document outlines 13 policies that governments must follow to protect human rights in an age of digital surveillance—including acknowledgement that communications surveillance threatens free speech and privacy and should only be carried out in exceptional cases and under the rule of law.

Once the signatures are collected, the organizations will deliver the petition to the UN, world leaders and global policymakers. Over 300 organizations, plus many individual experts, have already signed the petition.

"Surveillance can and does threaten human rights, " EFF International Rights Director Katitza Rodriguez said. "Even laws intended to protect national security or combat crime will inevitably lead to abuse if left unchecked and kept secret. The Necessary and Proportionate Principles set the groundwork for applying human rights values to digital surveillance techniques through transparency, rigorous oversight and privacy protections that transcend borders."

Today, the UN Third Committee unanimously adopted Resolution A/C.3/68/L.45, "The Right to Privacy in the Digital Age." Sponsored by 47 nations, the non-binding resolution recognizes the importance of privacy and free expression and how these core principles of democracy may be threatened when governments exploit new communications technologies.

"While not as strong as the original draft resolution, the United Nations resolution is a meaningful and very positive step for the privacy rights of individuals, no matter what country they call home," Rodriguez said. "We will be watching to see if countries such as China, Russia or even the US use the resolution to legitimize their mass surveillance programs. That is why it's important for nations to go further and comply with the Necessary and Proportionate principles."

EFF's web development team designed the action center using the same activism platform the organization has successfully deployed in campaigns on the state and federal level in the US, this time adapting it to the scale of an international movement.

For more information on the petition and principles, read Rodriguez's blog post.

DC Appeals Court to Hear FOIA Lawsuit Against the Department of Justice

Washington, DC - Lawyers from the Electronic Frontier Foundation (EFF) will appear before the US Court of Appeals for the District of Columbia Circuit on Tuesday morning to argue for the release of a secret legal opinion on the federal government’s surveillance authority. For nearly three years, EFF has sought, under the Freedom of Information Act (FOIA), the disclosure of a document produced by the Office of Legal Counsel (OLC) that the FBI claims provides it with the authority to obtain private call-detail records in "certain circumstances," without any legal process or a qualifying emergency.

Who: EFF Staff Attorney Mark Rumold, who will be delivering the oral argument, and EFF Senior Counsel David Sobel

Media Availability: EFF attorneys will be available for comment immediately after the hearing at the courthouse.

In January 2010, the US Department of Justice's Office of the Inspector General released a report on the FBI's use of "exigent letters and other informal requests" to obtain telephone records from phone companies. The report described an OLC opinion that determined the federal government could obtain call records without legal process and without citing an emergency situation to justify the data collection. The OLC's determination appears to directly conflict with the Stored Communications Act, a federal privacy law that safeguards customer call records from disclosure to the government without valid legal process.

EFF submitted a FOIA request for the documents in February 2011, which the DOJ rejected. EFF filed its lawsuit in DC in May 2011 and appealed when the district court sided with government.

"The public has a fundamental right to know how the federal government is interpreting federal surveillance and privacy laws," Staff Attorney Mark Rumold said. "These interpretations affect wide swaths of society—the public, communications providers, and federal agencies—and the government cannot be allowed to shield its interpretations of law from public scrutiny. Secret surveillance law simply has no place in a democratic society."

Cincinatti, Ohio - The Electronic Frontier Foundation (EFF) and a coalition of free speech advocates filed an amicus brief supporting thedirty.com's appeal of a defamation ruling that contradicts protections for website operators contained in Section 230 of the Communications Decency Act (CDA). In the brief, filed in the US Court of Appeals for the Sixth Circuit on Tuesday, the coalition argues that websites—even those that host offensive gossip—cannot be held liable for information posted by third parties.

The case centers around a 2009 message that a visitor posted to thedirty.com alleging that a teacher and a cheerleader for the Cincinnati Bengals had "slept with every" player on the football team. The subject of the post, Sarah Jones, then sued the site's operator, Dirty World LLC, and its editor and publisher, Nik Richie. A district court denied thedirty.com's claim of immunity under the CDA on the basis that the site "encouraged" defamatory content from third parties. A jury subsequently awarded Jones $338,000.

The ruling, if upheld, would have serious ramifications for free speech on the Internet. Since the passage of the CDA in 1996, courts have consistently held that website operators may be held responsible for unlawful material posted by users only if those operators directly solicited or induced the content. In this case, the district court denied immunity to the website based on other factors such as the website's name and cultivation of a negative atmosphere. The court's holding could open the door to lawsuits against a wide array of websites that host critical speech, including sites that display consumer reviews or reports of malfeasance.

"In order for speech to be protected online, the platforms that carry speech need to be strongly and unquestionably protected," EFF Senior Staff Attorney Matt Zimmerman said. "Website operators should not and cannot lose legal immunity for being offensive. They can only be held liable if they engaged in actionable behavior themselves. Here, that did not happen."

In addition to EFF, four groups joined the friend-of-the-court brief: ACLU of Kentucky, Center for Democracy & Technology, Digital Media Law Project and Public Participation Project. Wendy Seltzer and Adam Holland of the Berkman Center for Internet & Society at Harvard University and the Chilling Effects Clearinghouse also signed onto the brief.

"Section 230 gives website operators the certainty that they can offer platforms for user speech without the risk of spending every day litigating over comment sections," ACLU Staff Attorney Lee Rowland said. "The trial court's incorrect decision risks eroding that certainty."

The signatories are collectively listed as inventors on nearly 200 patents, many of which cover software inventions. They expressed support for patent reform. Congress is currently pursuing several approaches that have the potential to curb the chilling effect on innovation posed by trolls and improve patent quality.

"Broad, vague patents covering software-type inventions—some of which we ourselves are listed as inventors on—are a malfunctioning component of America's inventive machinery," the inventors write. "This is particularly the case when those patents end up in the hands of non-practicing patent trolls." The inventors believe that "software patents are doing more harm than good," and they urge Congress to pass legislation that would curb patent troll abuses, which pose an immediate threat to innovation and the promise of technology.

"It's time to force these trolls to take responsibility for the damage they cause with their dangerous claims," said inventor Derek Parham, who helped organize the letter. "We need legislation that will put a stop to the patent troll business model once and for all."

In addition to Parham, many prominent engineers and entrepreneurs signed the letter, including Twitter co-founder Evan Williams; Facebook co-founder Dustin Moskovitz; former Principal Engineer at Qualcomm Ranganathan Krishnan; and Quantcast's co-founder Paul Sutter.

"The time for meaningful reform is now," said Julie Samuels, EFF Senior Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents. "We hope Congress will hear these engineers and inventors and so many others and pass legislation that ends the patent troll problem once and for all."

NY Attorney General Subpoena Amounts to Unlawful “Fishing Expedition”

Albany, NY - The Electronic Frontier Foundation (EFF) and the Center for Democracy & Technology (CDT) have filed a friend-of-the-court brief supporting Airbnb's petition to set aside a sweeping New York State Attorney General subpoena that demands information about virtually all Airbnb users who make real estate available for rent in the state. In the brief filed Friday, EFF and CDT highlight both the overreaching nature of the subpoena as well as the critical need for courts to carefully review government efforts to indiscriminately sweep up information about large numbers of Internet users.

In October, NY State Attorney General Eric Schneiderman issued a sweeping subpoena seeking identification, financial, and other information on effectively all New York Airbnb "Hosts," those users offering living space for rent. The attorney general explained in later legal filings that he was seeking such information because he believed that some of Airbnb's Hosts had violated state occupancy and tax laws. However, the subpoena sought information about all Hosts that offered accommodations in New York from 2010 to the present, making no effort to exclude those users who plainly fell outside the laws at issue.

"Indiscriminate subpoenas that seek the identity and other personal information of thousands of Internet users without specific justification are improper and should be quashed," EFF Senior Staff Attorney Matt Zimmerman said. "It is not enough for the state to speculate that some Airbnb users might have broken some law at some unknown point. An online service's users deserve to be protected from fishing expeditions like this one."

In the brief, EFF and CDT discuss how broad subpoenas to Internet intermediaries such as Airbnb are particularly concerning as users whose information is sought ordinarily have little practical ability to challenge such subpoenas, even if they are unlawful. They further argue that, while Airbnb's efforts to block the subpoena are commendable in this instance, users should not have to rely on companies to defend against government overreach and courts should themselves play an active, skeptical role holding the government to task.

"Just because the technology collects the data and makes it easy to disclose doesn't mean the government is entitled to it all," said Gregory T. Nojeim, director of CDT's Project on Freedom, Security and Technology. "Whether it's a secret application from the NSA or a subpoena from a state official, courts need to reject or substantially narrow bulk data demands from government officials."

Contacts:

About EFF:

The Electronic Frontier Foundation is the leading organization protecting civil liberties in the digital world. Founded in 1990, we defend free speech online, fight illegal surveillance, promote the rights of digital innovators, and work to ensure that the rights and freedoms we enjoy are enhanced, rather than eroded, as our use of technology grows. EFF is a member-supported organization.

About Center for Democracy and Technology:

The Center for Democracy & Technology is a non-profit public interest organization working to keep the Internet open, innovative, and free. With expertise in law, technology, and policy, CDT seeks practical solutions to enhance free expression and privacy in communications technologies. CDT is dedicated to building consensus among all parties interested in the future of the Internet and other new communications media.

San Francisco - The Electronic Frontier Foundation (EFF) has provided a federal judge with testimony from 22 separate advocacy organizations detailing how the National Security Agency's (NSA) mass telephone records collection program has impeded the groups' work, discouraged their members and reduced the numbers of people seeking their help via hotlines. The declarations accompanied a motion for partial summary judgment filed late Wednesday, in which EFF asks the court to declare the surveillance illegal on two levels—the law does not authorize the program, and the Constitution forbids it.

In First Unitarian Church of Los Angeles v. NSA, EFF represents a diverse array of environmentalists, gun-rights activists, religious groups, human-rights workers, drug-policy advocates and others that share one major commonality: they each depend on the First Amendment's guarantee of free association. EFF argues that if the government vacuums up the records of every phone call—who made the call, who received the call, when and how long the parties spoke—then people will be afraid to join or engage with organizations that may have dissenting views on political issues of the day. The US government acknowledged the existence of the telephone records collection program this summer, after whistleblower Edward Snowden leaked a copy of a Foreign Intelligence Surveillance Court order authorizing the mass collection of Verizon telephone records.

"The plaintiffs, like countless other associations across the country, have suffered real and concrete harm because they have lost the ability to assure their constituents that the fact of their telephone communications between them will be kept confidential from the federal government," EFF Senior Staff Attorney David Greene said. "This has caused constituents to reduce their calling. This is exactly the type of chilling effect on the freedom of association that the First Amendment forbids."

In Wednesday's motion, EFF asks the US District Court for the Northern District of California to review the undisputed evidence at hand and rule that the NSA's "Associational Tracking Program" is not only unconstitutional, but not authorized under Section 215 of the USA PATRIOT ACT, the law the government has so far used to justify its surveillance.

The statute authorizes the government to collect information only if the information "is relevant to an authorized investigation." Because the government collects the records of every telephone call made to, from and within the United States, the vast majority of the records it collects are plainly irrelevant.

"Section 215 is a simple statute designed to give the FBI something like the subpoena power available in criminal investigations," attorney Thomas Moore, an EFF special counsel, said. "It was not intended to authorize the dragnet surveillance the NSA has undertaken. A government of the people, by the people, and for the people should not be spying on the people."

Contact:

"The threat of exposure has caused potential visitors to stay away, and members to withdraw from the community, resulting in the church losing its voice and damaging our faith and our organization. Even more damaging is the effect on our neighbors, many of whom depend on the church for basic necessities such as our weekly food distribution, and life-enhancing programs such as exercise classes, and math tutoring for children. Our neighbors now fear that a simple contact with the church inquiring about a church program will bring scrutiny upon other aspects of their lives, or bring their persons to the attention of a government that they may have reason to fear."

"Many gun owners are distrustful of government or of having any record of their status as gun owners. At least one of our members is only known to us by his online alias and he would only directly contact us via telephone from a blocked number. He has not phoned since the disclosures that lead to this action.

"Many of our constituents have expressed concern about the confidentiality of the fact of their telephone communications with us. Those who do call now leave fewer details in their voicemails of the concern or issue they are calling about, forcing staff and volunteers to make additional contacts to the caller, or more quickly refer the caller to one of our outside attorneys. This creates more expense than if a non-attorney volunteer could have answered a question."

"We have experienced an increase in questions from our researchers, other staff, external partners and potential associates expressing concern about the confidentiality of the fact of their communications with HRW itself and among our staff and associates. While it is difficult to get precise information about communications that did not occur, based on the concerns raised by others, I believe that some individuals may have refrained from reporting human rights abuses to us and some partners may have refrained from contacting us due to their concerns about security and confidentiality."

"Because many of the persons CAIR-OHIO represents are subject to tangible manifestations of federal government scrutiny, discretion and confidentiality in their communications and associations with us is of paramount importance to such persons. Knowing that the government is certainly logging communications such persons may have with CAIR-OHIO deters these persons form seeking our assistance.

"By virtue of this 'guilt by association' form of analysis, large swaths of the Ohio Muslim community may be subject to government scrutiny, simply by virtue of having contacted CAIR-OHIO and because of CAIR-OHIO's advocacy efforts on behalf of those wrongly accused. That is, is a CAIR—OHIO client accused or suspected by government of wrongdoing contacts us, all those who contact CAIR-OHIO – including our constituents and prospective clients – are accordingly put at risk of government scrutiny, solely through their shared association with CAIR-OHIO.

"When the very act of communicating by phone with those we aim to serve puts our constituents at risk for further government scrutiny, our organizational mission is essentially undermined."

"Revelations of NSA surveillance in the press has caused NLG members working on litigation and advocacy to restrict discussion of legal strategy, case updates and confidential information to in-person meetings or to written correspondence sent by mail. Practical restraints on the frequency of these meetings results-in less robust information to pass between attorneys and has potentially hindered Guild members from providing as vigorous a legal representation as would have otherwise been possible with secure electronic communication channels."

"California NORML experienced an abrupt drop in the number of hotline calls we received after revelation of NSA's phone surveillance program in late June. Prior to then, we received an average of about 15-20 calls daily on our hotline; afterwards, calls dropped to 5 -10 per day. This data supports our belief that the NSA program had a chilling effect on our constituents' willingness to communicate with us. Moreover, several of our members have expressed similar concerns in this regard."

"I had trouble sleeping, delayed some essays and blogs I had been considering, and worried whether my actions might make trouble for nonpolitical relatives. I certainly felt a chill fall across my work of peaceable assembly, association, petition, and the free exercise of my religious convictions. Since as the Rabbinic Director of The Shalom Center I am the chief spokesperson for its religious outlook and religious work, this chilling effect has slowed down, inhibited, and distorted the expression of our religious concerns."

"For some policymakers, a change in their policy positions attributable to TechFreedom's advocacy may imply, accurately or not, an association or relationship that the policymaker might otherwise be unwilling to publicly acknowledge. This inhibition, in turn, hinders TechFreedom's ability to advocate effectively for its ideas.

"Similarly, our communications with journalists and foreign nationals is limited by the risk of disclosure. Knowing that the government will retain a record of all our communications, and the inevitable possibility of disclosure, will reduce the likelihood of such individuals working with TechFreedom on important Internet freedom issues, which are inherently trans-national and often require collaboration with foreign civil society groups and policymakers."

"The Associational Tracking Program activities have harmed PPR because we have experienced a decrease in communications from whistleblowers, members and users who would have requested that their communications with Plaintiff remain secret.

"PPR experienced a decrease in calls to our office phone line during the summer. For example, prior to the revelations of NSA tracking, we received on average 40 calls per month. After the NSA revelations became public, we received on average only 20 calls per month."

"Several organizational members have asked to have their membership terminated and their data expunged from our database after purchasing products or services (and purchasing memberships for the purpose of receiving discounted prices on those products or services) in the wake of recent publicity about the extent of telephone metadata surveillance. Media Alliance has experienced a significant increase in the number of individuals expressing concern about the privacy of their inquiries and transactions with our organization, more than a doubling from any previous year. I have been in this position since 2007 and the increase is unprecedented. Moreover, we have had a large number of individuals go beyond expressing concern to request the end of their memberships."

Samuels, who is the Mark Cuban Chair to Eliminate Stupid Patents, will address how patent trolls' tactics amount to a shakedown racket, causing billions of dollars of economic damage each year. The trolls, also known as "patent assertion entities," neither make nor sell anything, but threaten to sue unsuspecting businesses with vague and dubious patent claims. Samuels will argue that Congress should enact statutory protections for consumers who find themselves facing patent troll threats by regulating the demands those trolls make and increasing transparency around those demands.